Case 6:06-cv-00064-BAE-GRS Document 7
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
ERMA JEAN HOLLOWAY WEST,
Plaintiff,
V. 606CV064
LEWIS COLOR LITHOGRAPHERS,
Defendant.
ORDE R
A Magistrate Judge granted Erma Jean
Holloway West leave to in forma pauperis fi le
this employment discrimination case against her
former employer, Lewis Color Lithographers .
Doc . # 2 . After 9 months of inactivity, the Court
sua sponte dismissed it under S .D .GA .LOc .R .
41 .1(c) . Doc . # 4 . However, it did not first
provide plaintiff notice as required by that rule :
LR 41 . DISMISSAL OF ACTIO N
LR 41 . 1 For Want of Prosecu tion . In the
following instances and in other instances
provided by law or court rules, the assigned
Judge may, after notice to counsel of
record, sua sponte, or on motion of any
party, dismiss any action for want of
prosecution, with or without prejudice :
(a) Failure to permit or provide discovery
within the time set forth in an order
compelling discovery ;
(b) Willful disobedience or neglect of any
order of the Court; or
(c) Any other failure to prosecute a civil
action with reasonable promptness .
S .D .GA .LOC .R. 41 .1 (emphasis added) .
Although the notice requirement is textually
Filed 07/16/2007 Page 1 of 5
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limited to counsel of record , it has been this
Court' s practice to also apply the requirement to
pro se litigants .'
It is in that light that West moves for
reconsideration . Doc. # 6. In it she explains
that she has been tending to her dying sister,
who just passed away . Id. at 1 . Now she would
like her case reactivated . Id. She filed this
motion 27 days after entry of judgment against
her, however, so it is too late to invoke
F .R.Civ .P . 59(e) (such motion "shall be filed no
later than 10 days after entry of the judgment") .
That leaves F .R.Civ .P. 60(b)(1) ("mistake,
inadvertence, surprise, or excusable neglect"),
which must be filed "not more than one year
after judgment." Rule 60(b)(1) . The Court may
be said to have made a mistake by failing to give
West notice, and West filed her motion within
one year, so the Court GRANTS her Rule
60(b)(1) motion (doc . # 6) and thus VACATES
its Dismissal Order and Judgment (doc . ## 4, 5) .
But the Court is granting relief only because
of its misstep in applying Local Rule 41 .1 (i.e.,
lack of pre-dismissal notice and an opportunity
to be heard) . Plaintiff must still show the Court
good cause, within the meaning of F .R.Civ .P.
4(m),' why it should not dismiss her case
' The Clerk is directed to send a copy of this opinion to
the Court's Local Rules Committee for the purpose of
considering an amendment to this rule so that
unrepresented parties receive equal treatment .
That rule provides :
(m) Time Limit for Service . If service
of the summons and complaint is not
made upon a defendant within 120 days
after the filing of the complaint, the
 Case 6:06-cv-00064-BAE-GRS
without prejudice for failing to comply with that
rule's 120-day limit .
In that regard, the Eleventh Circuit recently
reminded a pro se litigant that "although we are
to give liberal construction to the pleadings of
pro se litigants, we nevertheless have required
them to conform to procedural rules ." Albra v.
Advan, Inc., F .3d _, 2007 WL 1814677 at
* 2 (11th Cir . 6/26/07) (quotes and cite omitted) ;
see also Roberts v. Georgia, 2007 WL 1034731
at * 1 (11th Cir . 4/6/07) (unpublished) ; Clark v .
Argutto, 221 Fed.Appx . 819, 2007 WL 738673,
*4 (11th Cir. 2007) (district court properly
dismissed without prejudice federal, pro se
inmate's claims against defendants for failure to
serve them within Rule 4(m)'s time frame, his
failure to request an extension of time for
service, and his failure to show good cause for
extending service period) . West must comply
with the procedural rule here, Rule 4(m), and any
"failure to understand [it] does not excuse [her]
failure to provide timely service ." Cain v.
Abraxas, 209 Fed .Appx . 94, 96 (3rd Cir . 2006) .
The Court will thus give her 20 days from the
date this Order is served to do so . Given what
court, upon motion or on its
own initiative after notice to
the plaintiff, shall dismiss the
action without prejudice as to
that defendant or direct that
service be effected within a
specified time ; provided that if
the plaintiff shows good cause
for the failure, the court shall
extend the time for service for
an appropriate period. This
subdivision does not apply to
service in a foreign country
pursuant to subdivision (f) or
G)(1) .
Rule 4(m) ; see also Thomas v. Box, 2007 WL 1266055 at
* 1 (11th Cir . 5/2/07) (unpublished) .
Document 7 Filed 07/16/2007 Page 2 of 5
she asserts thus far, however, pause must be
taken to note what has already transpired in this
case, and thus prevent any repetition . Pro se
litigants sometimes claim that they have
contacted the Court's Clerk's office and
received some sort of advice . West claims that
I have contacted the Clerk of Court's
office several times to get the status of my
case. I was told that there were several
other cases being reviewed also, and when
they get back to my case, I would receive
some papers in the mail from the judge to
complete and return to the court . I was
waiting to hear from the court . The other
times I called I was told that my case was
still active . I filled out papers to see if the
court would waive the court fees . They
did, I explained to them about my sister,
who had a critical illness .. . .
Doc . #6at1 .
Court clerks are public servants and thus are
encouraged to be helpful to the public. But no
litigant may ask for or receive substantive
advice of any kind from this Court's Clerk, and
certainly no one may rely on any such advice
even if it is (wrongfully at that) dispensed . On
substantive matters,' including whether a
litigant is free to disregard filing deadlines or
wait around for someone to tell her to start
litigating her case, the Clerk is simply not
authorized to speak for the Court . The national
and local procedural rules (especially those that
establish time limits for filing things like a
notice of appeal, for serving process, etc .), as
well as the court system as a whole, would
quickly degenerate were litigants able to claim
that "I called the Clerk's office and they said I
a
This is different from ministerial advice, e.g., th e
number of copies of something that must be filed .
2
 Case 6:06-cv-00064-BAE-GRS Document 7
could have extra time to file that," or that the
Clerk excused some other filing requirement, etc .
Unless a written court ruling or notice permits
otherwise, no litigant may claim, for example, "I
was waiting to hear from the court" as an excuse
for inaction where the rules demand action .
For that matter, West's above-excerpted
assertions, even if accepted as true, do not
support her position . The record shows that the
"papers" on which West waited to "waive the
court fees" (i.e ., the Magistrate Judge's Order
granting her leave to proceed in forma pauperis
(IFP)) in fact were sent to her on 7/20/06, doc . #
2, and West knows this because she then filed her
complaint on 8/8/06 . Doc . # 3 . This Court
focused on the complete-inactivity period after
she filed her complaint when it Rule 41 .1(b)-
dismissed it. Doc. # 4 at I ("The complaint in
this case was filed August 8, 2006 . There has
been no effort on behalf of the plaintiff to press
this case forward after that date . The Court will
not allow cases to remain on the active docket
when it appears that nothing is being done to
prosecute the issues to a timely disposition") .
West therefore must now show good cause,
within the meaning of Rule 4(m), why she did
nothing through 5/29/07, when the Court entered
its Rule 4(m)-dismissal . In that regard, "good
cause exists only when some outside factor, such
as reliance on faulty advice, rather than
inadvertence or negligence, prevented service ."
Lepone-Dempsey v. Carroll County Comm'rs,
476 F.3d 1277, 1281 (11th Cir. 2007) (quotes,
alterations and cite omitted) . Again, West may
not cite any "Clerk's office advice" here .
In that regard, it is signi fi cant that West
followed the same path as the plaintiff in Nelson
v. Amerus Life Ins . Co., Inc ., 2007 WL 1521506
(S.D.Miss . 5/21/07) ( unpublished), where
the plaintiff never filed a motion asking for
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Filed 07/16/2007 Page 3 of 5
an extension of the deadline to serve the . . .
defendants, before or after the [Rule 4(m),
120-day] deadline had passed . She alleges
difficulty in serving the . . . defendants after
the 120-day period had expired, which she
attributes to evasion by [a defendant] . The
Court does not find sufficient evidence of
evasion ; furthermore, these attempts at
service were made after, not before,
expiration of the 120-day period . The
plaintiff has offered no explanation as to
why more attempts to effect service were
not made within the time limit, nor any
explanation as to why she failed to request
additional time from this Court to
consummate service.
2007 WL 1521506 at * 2 (emphasis added) .
Thus, it seems unlikely here that West will be
able to show Rule 4(m) good cause .
But even if she fails to do that, the Court
must still consider, prior to dismissing her case,
whether any other circumstances warrant an
extension of time based on the facts of the case .
Lepone-Dempsey, 476 F .3d at 1282 . This
includes whether any statute of limitations
might run . Id. However, "[w]hile the running
of the limitations period is a factor the district
court may consider in determining whether to
dismiss a complaint under Rule 4(m), the
district court is not required to give this
controlling weight." Boston v. Potter, 185
Fed .Appx . 853, 854 (11th Cir. 2006) (emphasis
added) .
Courts applying Rule 4(m) after Lepone-
Dempsey have been fairly forgiving . In Harvill
v. Wyeth, 2007 WL 1362671 ( M.D .Fla . 5/7/07)
(unpublished ), the court specifically noted that
"Rule 4(m)-cause" plaintiffs there failed to
"state that the statute of limitations have actually
expired , nor have they bri efed this issue . Despite
the fact that [p]laintiffs have not shown that the
 Case 6:06-cv-00064-BAE-GRS Document 7
statute of limitations would bar the re-filed
action, the Court [decided to] give [them] one
final chance to serve all of the defendants ." Id.,
2007 WL 1362671 at * 1 . And in Rhodan v.
Schofield, 2007 WL 1810147 (N .D .Ga. 6/19/07)
(unpublished), a prisoner civil rights action, the
mere probability of a successful time-bar defense
following a Rule 4(m) dismissal was deemed
sufficient good cause to deny a motion calling for
just that . Id. 2007 WL 1810147 at * 5 ("Such a
ruling, however, would functionally bar Rhodan's
claim since the statute of limitations has now run .
This harsh result is `good cause' to enlarge the
120-day period") .
That treatment contrasts with cases where
litigant indolence is accompanied by no
limitations bar . Gambuti v. Georgia, 2007 WL
1087441 at * I (M .D.Ga. 4/9/07) (unpublished)
(no Rule 4(m) good cause where the plaintiff was
simply negligent in finding his would-be
defendant's address and the limitations statute for
his claim had not yet run) ; Sokolik v . Prison
Health Services, Inc ., 2007 WL 1491041 at * 1
(S.D.Ga . 5/18/07) (unpublished) (remindingpro
se inmate that, while he may, because of his
incarcerated status, rely on the U .S . Marshall to
serve his Complaint, the burden remains on him
to ascertain his would-be defendant's address and
timely notify the Marshal's Service ; Rule 4(m)
dismissal awaits him if he does not) .
In making her good cause showing here,
plaintiff West is reminded that the Court will not
accept her claim that she was an overburdened
caretaker, as it is hard to fathom that she did not
even have time to at least request an extension or
otherwise notify the Court (in a written extension
motion, and not via phone chats with clerical
staff) of her travails . And again, no one may rely
on advice from docketing clerks, who are not
authorized to advise any litigants about wha t
their rights and obligations are . Finally, as noted
earlier, plaintiffs explanation about her
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Filed 07/16/2007 Page 4 of 5
interaction with the Clerk's office goes to her
IFP motion, and does not account for the period
after she filed her complaint . Mere telephonic
communication of personal difficulties to a
docketing clerk simply does not satisfy Rule
4(m)'s good cause requirement.
Likely West can credibly claim that she is
untrained in the law and thus was unaware of
Rule 4(m)'s requirements, and that it did not
dawn on her to move for an extension .
However, while courts construe pro se filings
liberally, Erickson v. Pardus, 127 S .Ct. 2197,
2200 (2007), they cannot excuse compliance
with the rules . Albra, 2007 WL 1814677 at * 2 ;
Smith Bey v . Gibson, 2007 WL 778626 at * 1 n.
2 (D.Colo . 3/9/07) (unpublished) ("Prose status
does not relieve the Plaintiff of the duty to
comply with the various rules and procedures
governing litigants and counsel or the
requirements ofthe substantive law, and in these
regards, the Court will treat the Plaintiff
according to the same standard as counsel
licensed to practice law before the bar of this
Court") .
That result may not be fair -- the represented
have counsel who stay abreast of and thus
ensure compliance with court rules , while pro se
litigants suffer losses from understandable
ignorance of them . Redressing such iniquity,
however, is a political choice for Congress to
address, not the judiciary. See, e.g., 28 U.S.C.
§ 1915(e)(1) ("the cou rt may request an atto rn ey
to represent an y person unable to afford
counsel" (emphasis added)).' Suffice it to say,
in the meantime , that if the rules were applied
only to the represented , then the unrepresented
could easily overwhelm dockets with non-
deadline driven filings and thus bog the entire
4 That's all that Congress has chosen to do . It is not for
this Court to "judicially legislate" any further .
 Case 6:06-cv-00064-BAE-GRS
justice system down . The Court thus cannot
accept ignorance of Rule 4(m) as "good cause"
here .
That still leaves the statute of limitations
factor, and the Eleventh Circuit's instruction to
consider excusing Rule 4(m) noncompliance
anyway. West raises discrimination based on a
physical disability (hence, she appears to raise an
ADA claim),' as well as based on her race
(black) . Doc. # I at 4-5, 8 . Her EEOC Right to
Sue letter is dated 5/16/06 . Doc. # 1 at 12 . She
does not indicate when she received it, but she
filed this case on 7/13/06, within the 90-day
limitations period. See Miller v . Georgia, 2007
WL 812056 at * 2 (11th Cir . 3/15/07)
(unpublished) ("Under Title VII, a plaintiff must
file her complaint in the district court within 90
days of her receipt of a right-to-sue letter from
the EEOC . 42 U .S.C. § 2000e-5(f)(1) ...."); Cain,
209 Fed .Appx at 97 . The same limitations
period applies for ADA claims . '
A Rule 4(m) dismissal , then, will place her
beyond the limitations peri od. And Miller shows
that Georgia ' s renewal statute may not be
invoked to revive a time-barred case, thus
requiring West to show entitlement to "the
`extraordinary remedy ' of equitable tolling . . . ."
Miller, 2007 WL 812056 at * 3 (former stat e
s The Americans with Disabilities Act ("ADA"), 42 U .S .C .
§ 12203(a) .
6
The ADA provides the same statute of
limitations , as it expressly incorporates
the enforcement mechanisms contained
in Title VII, 42 U .S .C . § 2000e-5 . See
42 U .S .C . § 12117(a) ; see also Zillyette
v . Capital One Financial Corp ., 179
F .3d 1337, 1339 (11th Cir.1999) (" It is
settled law that, under the ADA,
plaintiffs must comply with the same
procedural requirements to sue as exist
under Title VII of the Civil Rights Act
of 1964") .
Miller, 2007 WL 812056 at * 2 .
Document 7 Filed 07/16/2007 Page 5 of 5
employee's filing of civil rights complaint, that
was later dismissed without prejudice under
Rule 4(m), did not automatically toll 90-day
limitations period for a future civil rights
complaint against the state) .
West is not yet in the Miller zone (the Court
has not dismissed her case under Rule 4(m)) .
She thus may invoke Lepone-Dempsey to obtain
"discretionary good cause" relief under Rule
4(m) . Lepone-Dempsey, 476 F .3d 1277, 1281 ;
see also Coates v . Shalala, 914 F.Supp . 110,
112 (D .Md . 1996) (In government employee's
Title VII action against government, district
court would extend time for government
employee to serve summons and complaint on
the United States Attorney's office, though the
government employee did not argue there was
good cause as to why he failed to effect service
within prescribed time limit, where government
employee was acting pro se at time of service,
and dismissal of action without prejudice would
effectively bar the employee's claim), cited in
4B 5B Wright & Miller : FED . PRAC . & PROC . §
1137 (Time Limit for Service) (2007) .
To summarize, the Court GRANTS plaintiff
Erma Jean Holloway West's Rule 60(b)(1)
motion (doc . # 6) and thus VACATES its
Dismissal Order and Judgment (doc . ## 4, 5) .
Within 20 days of the date this Order is served,
however, she must why this Court should not
dismiss her case under Rule 4(m) . Finally, the
Clerk shall comply with note 1, supra .
This /6 day of July, 2007 .
AVANT EDENFIELD, J DGE
UNITED STATES DI RICT COURT
SOUTHERN DISTRICT OF GEORGIA